United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT December 17, 2004
Charles R. Fulbruge III
Clerk
No. 04-40363
Conference Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOSE MENDOZA-SIFUENTES,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 1:03-CR-1002-ALL
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Before KING, Chief Judge, and DeMOSS and CLEMENT, Circuit Judges.
PER CURIAM:*
Jose Mendoza-Sifuentes (Mendoza) appeals his guilty-plea
conviction and sentence for illegal reentry following deportation
in violation of 8 U.S.C. § 1326.
For the first time on appeal, Mendoza contends that the
“felony” and “aggravated felony” provisions of 8 U.S.C. § 1326(b)
are unconstitutional in light of Apprendi v. New Jersey, 530 U.S.
466 (2000). He also contends that Blakely v. Washington, 124
S. Ct. 2531 (2004), applies in determining his sentence. Mendoza
acknowledges that his arguments are foreclosed, but he seeks to
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 04-40363
-2-
preserve the issues for possible Supreme Court review. The
Government contends that Mendoza’s appeal is barred by the
appeal-waiver provision in his plea agreement.
Mendoza’s arguments are not precluded by the terms of the
appellate-waiver provision. Nevertheless, as Mendoza concedes,
his arguments are foreclosed. See Almendarez-Torres v. United
States, 523 U.S. 224, 247 (1998); United States v. Pineiro, 377
F.3d 464, 473 (5th Cir. 2004), petition for cert. filed (U.S.
July 14, 2004) (No. 04-5263); United States v. Dabeit, 231 F.3d
979, 984 (5th Cir. 2000).
AFFIRMED.